Burger Court

The Burger Court is defined by the years that Warren Earl Burger presided as chief justice of the U.S. Supreme Court. Richard Nixon nominated Warren Burger as chief justice in 1969, replacing Chief Justice Earl Warren. Chief Justice Burger’s appointment to the Court came at a time when the criminal justice system was in the national spotlight. Burger had a reputation for “law and order,” and President Nixon thought that he would be more of a strict constructionist than his predecessor. In other words, President Nixon thought Burger would be a judge who would apply the law as it was written rather than legislating from the bench. Conservatives also hoped that the Burger Court would chip away at some of the liberal precedent set by the Warren Court.

The composition of the Burger Court changed several times during Chief Justice Burger’s tenure. Justices John Marshall Harlan, Hugo L. Black, William O. Douglas, William J. Brennan, Thurgood Marshall, Potter Stewart, Byron R. White, Sandra Day O’Connor, Harry A. Blackmun, Lewis F. Powell, John Paul Stevens, and William R. Rehnquist were members of the Burger Court at various times. The Burger Court generally had a solid six-member conservative majority.

Chief Justice Burger was considered a very conservative member of the Court, voting against civil liberty claims the majority of the time. Although the Burger Court was conservative, it was not conservative in all areas. The cases discussed below highlight some of the better known cases involving education that were decided by the Burger Court. Not all of these cases adhere to conservative principles.

Issues of Race and Disability

The Burger Court was involved with several racial discrimination cases focused on affirmative action, de facto segregation, and institutional racism. In Swann v. Charlotte-Mecklenburg Board of Education (1971), the justices permitted court-ordered busing to combat segregated schools. In addition, the Burger Court found a school busing program to be constitutional in Keyes v. School District No. 1, Denver, Colorado (1973). However, in Milliken v. Bradley (1974), the Court limited its remedial power in desegregation cases when it found multidistrict remedies to be unconstitutional.

In addition to segregation cases, the Court decided a high-profile affirmative action case. In Regents of the University of California v. Bakke (1978), the Court held that affirmative action in university admissions can be justified by the importance of classroom diversity but set limits on how it could be implemented. In another higher education case, the Burger Court upheld the Internal Revenue Service’s plan to deny tax-exempt status to private schools that practiced racial discrimination in student admissions plans (Bob Jones University v. United States, 1983).

Additionally, the Burger Court authored opinions involving race and equal employment opportunity law that have been relied upon in some education-related arguments. In Griggs v. Duke Power Co. (1971) and in Fullilove v. Klutznick (1980), the Court affirmed that Congress could use racial and ethnic criteria, as long as these criteria were used in a limited way, in a federal grant program.

Issues of Religion

A few other key education cases that the Burger Court decided include issues related to instruction and education as a fundamental right. In Wisconsin v. Yoder (1972), the Court permitted Amish studesspnts to stop attending public schools after the eighth grade based on religious grounds. In San Antonio School District v. Rodriguez (1973), the Court refused to declare education a fundamental right under the federal constitution.

The Burger Court also resolved important religion cases. In Lemon v. Kurtzman (1971), the Court constructed the leading Establishment Clause test, which outlined the three factors to be used in evaluating whether government action constituted an impermissible establishment of religion. A year earlier, in Walz v. Tax Commission of New York City (1970), the Court upheld the New York practice of providing state property tax exemptions for church property that is used in worship services; this analysis became part of the tripartite Lemon test. Yet, in Mueller v. Allen (1983), the Court upheld the constitutionality of a statute from Minnesota that granted all parents state income tax deductions for the actual costs of tuition, textbooks, and transportation associated with sending their children to elementary or secondary schools. However, in Aguilar v. Felton (1985), the Court indicated that a program that provided federal funds to public employees who taught in religiously affiliated nonpublic schools was unconstitutional.

Further, the doctrine of separation of church and state survived the Burger Court with narrow margins. In Wallace v. Jaffree (1985), the Court concluded that a state statute authorizing public schools to have a moment of silent prayer was unconstitutional.

The Burger Court was more conservative than the Warren Court. Even so, many of the liberties granted under the Warren Court remained intact. When Chief Justice Burger retired, President Reagan appointed Justice William Rehnquist to the chief justice position and selected Antonin Scalia as a new associate justice. Some would argue that the Supreme Court became even more conservative after Chief Justice Burger’s departure.